Lawsuits Don't Discriminate Among Discriminators

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Want a surefire way to protect against at least some lawsuits?

Don't discriminate.

Although that's common knowledge for lawyers, it bears repeating: Don't discriminate.

As recently as a couple of months ago, discrimination issues made the news. In July, the Equal Employment Opportunity Commission enhanced its pregnancy discrimination guidelines by issuing enforcement guidance. The guidance updates the 1983 manual dealing with discrimination against pregnant workers by covering the requirements of the Pregnancy Discrimination Act and how the Americans with Disabilities Act applies to people with disabilities stemming from pregnancy.

Law firms must observe the legal requirements to operate a workplace free from discrimination based on sex, religion, race, etc., by ensuring that only a person's skills, experience and knowledge are factors in making human resources decisions.

There is no shortage of cases to drive home the point that, if you show bias in your employment practices, you'll eventually find yourself on the wrong end of a lawsuit.

Subjective, personalized environments

Virtually all large law firms prominently feature their diversity commitment and equal hiring practices on their websites. However, because firms, by their traditional nature as partnerships, are often highly subjective and personalized environments, personnel policies risk pressures and expectations that are more arbitrary than the law allows.

That point is reflected by a case several years ago in which a female partner at a major law firm claimed that the firm discriminated against women. She asserted that women partners at the firm received less compensation than men because the firm's partner distribution system was based on origination, not just billable work, as is the case in many firms.

With women still less than 20 percent of the partnerships at most large firms, origination remains a mostly male activity in which old relationships are the basis for current compensation, allowing little or no access to women, younger lawyers or other diverse groups in the firm.

Compensation may be a private law firm matter. However, firms unwilling to look anew at their compensation culture in light of public policy norms will continue to face challenges from within and social pressures from without.

Perception of unfairness

A perception of unfairness often is inadvertently created in two ways: (1) when employers fail to understand legal requirements; and (2) when employers fail to develop clear job descriptions.

What you don't know about your legal responsibilities really can hurt you. For example, federal law requires that employers affirmatively support and reasonably accommodate an employee's religious beliefs in the workplace; not doing so could result in action against you.

If you try to "spare" a female employee from travel and the resulting child-care expense, your action could support sexual discrimination claims under the Equal Pay Act, the Pregnancy Discrimination Act and/or the Family and Medical Leave Act.

Similarly, welcoming back a reservist from active duty while simultaneously expressing hope that he won't be called up again risks violating the Uniform Services Employment and Reemployment Rights Act. These are just a few of many possible situations in which the burden of compliance is fully on you.

In addition to understanding legal requirements, having a comprehensive job description for every position in the law office is essential to avoiding allegations of unfairness. The absence of such descriptions promotes inconsistency and threatens objectivity.

Descriptions should include the specific, significant tasks of each position and the performance standards by which the accomplishment of the tasks is judged. When employees understand what they should be doing and how they are evaluated, their performance is more likely to be positive — and they're less likely to resort to legal action for perceived unfairness.

It is your responsibility as an employer to be fully versed about all non-discrimination issues in employment law. No matter how successful you are as a lawyer, if you fail to follow all applicable employment regulations, your business is doomed from the inside.

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